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Street Art Is Here to Stay!

Food Trucks. Breweries. Street Art.  These are some trendy staples in most redeveloping urban areas.  Young tourists line up (for what seems like miles!) to pose for Instagram ® photos in front of massive street murals that depict wings, quotes, and other stylish images.  Street art is extremely popular, and it is here to stay, but for how long?  What happens when the buildings that host these massive works of art are slated for demolition or sale?  

The Visual Artists Rights Act of 1990 (“VARA”) states that the author of a work of visual art has the right to prevent any modification, mutilation, or destruction of a work that achieves recognized stature.  A work of recognized stature is one of high quality, status, or caliber that has been acknowledged as such by a relevant community.  VARA provides that any intentional or grossly negligent destruction of such work is a violation of the artist’s right and subject to actual or statutory damages.  Statutory damages are set between $750 and $30,000 per violation, but they may be increased to $150,000 per violation if the act is willful. 

In the landmark case Castillo v. G&M Realty L.P., decided in February 2020, the U.S. Court of Appeals for the Second Circuit affirmed a massive judgment against a property owner who violated the protections under VARA.  In 2002, Gerald Wolkoff sought to install artwork in an area of run-down warehouses that he owned in Long Island, New York.  The area became known as “5Pointz” and attracted artists and tourists from across the globe.   It featured aerosol art that was comprised of short-term and long-term pieces.  Jonathan Cohen, also an aerosol artist, served as its curator and oversaw the approval of new works through a process known as “creative destruction” where works would be periodically painted over.  The controversy arose in 2013, when Wolkoff looked to demolish the warehouses and build luxury apartments.  In opposition, Cohen unsuccessfully sought to have the area designated as a site of cultural significance.  Cohen also unsuccessfully tried to raise funds to purchase the land.  Finally, Cohen and the other artists sued Wolkoff to protect their rights under VARA.  The trial court was set to make a ruling on an injunction when Wolkoff hired a team to whitewash all the walls at 5Pointz. In fact, Wolkoff had not scheduled the buildings’ demolition as he had represented to the court, and he refused to allow the artists to remove their works.

The trial court, through an advisory jury, found that Wolkoff acted willfully in destroying the 5Pointz artwork.  The court also found that 45 of the 49 pieces of artwork had achieved recognized stature due to their artistic quality, as recognized by both the art community and the public at large.  The result was a whopping $6.75 million dollar judgment against Wolkoff.  The judge commented that Cohen and the artists had rightfully pursued all reasonable and legal remedies, while Wolkoff acted with revenge against the plaintiffs who had the nerve to sue him.

Visual artists should be aware of their rights and how to properly protect their works under VARA.  The ruling in Castillo and the actions of Cohen and the other artists can act as a road map for visual artists that find themselves in similar controversies in the future.  Congruently, Castillo should serve as a massive deterrent for vindictive property owners that look to choose profit over process.   

Van Santos

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